Law and reality in publishing (seldom the same thing) from the author's side of the slush pile, with occasional forays into politics, military affairs, censorship and the First Amendment, legal theory, and anything else that strikes me as interesting.

18 January 2012

Battle of the Golan Depths

The Supreme Court decided Golan today, holding that Congress does have the power to reinvigorate foreign copyrights to match what would have happened if the US Copyright Act had been consistent with the Berne Convention. This is entirely consistent with the Court's opinion a couple of years back in Eldred v. Ashcroft, 537 U.S. 186 (2003), which affirmed Congress's authority to extend the copyright term in a specific twenty-year increment. Justice Ginsburg wrote the controlling opinion today in Golan, just as she did in Eldred.

For once, I'm going to skip over the complex procedural history of how this matter reached the court. Although that history is very interesting to civil procedure geeks (like me), this time it does not affect the outcome or the factual record on which that outcome is based.

In any event, in the early 1990s Congress got whacked upside the head by the World Trade Organization for not properly complying with the Berne Convention — specifically Article 18 — when the US joined the Berne Convention in the late 1980s. The WTO reminded Congress that the formalities of registration did not, and could not, be used to deny copyright protection for foreign works. This resulted in legislation, because Congress really didn't want to be subject to WTO sanctions for copyright violations, and eventually in the Uruguary Round Agreements Act § 514 (codified at17 U.S.C. § 104A).

The seeming result of this change was to bring a lot of works back into copyright that had been "relied upon" as being in the public domain. Needless to say, some people — especially, but not only, in classical music, for complicated statutory and cultural reasons that could easily occupy a 10,000-word article — objected to this restriction on their ability to freely perform/exploit works that they had relied upon as being in the public domain. (Also needless to say, these people generally ignored all of the compromise protection offered them in § 514/§ 104A in making their arguments...) They therefore filed suit, claiming that Congress did not have the authority to do what it did.

At a fundamental level, the challenge must fail. Absent a valid First Amendment or Fifth Amendment issue, Congress has an absolute right to take a property interest that is inchoately held by the public. The Supreme Court has previously disposed of the various First and Fifth Amendment challenges here. But notice what the plaintiffs' position really is: It is not a First Amendment challenge at all. It is a Fifth Amendment challenge that what Congress did was a taking... because it presumes that the public domain is property in which potential exploiters have a sufficient and personal property interest. In short, this is an internal logical inversion — they would claim a private right from public property, and further claim that their private right is superior to the private right that Congress intends to "restore" to the original owners.

But let's leave sheer logic out of it: We're talking about cultural appropriation here, and logic is never a winning (or sufficient) strategy in arguments over culture. This particularly monstrosity ended up in the Supreme Court with this formal statement of the issues:

Section 514 of the Uruguay Round Agreements Act of 1994 granted copyright protection to millions of works that the Copyright Act had placed in the public domain of the United States, where they had remained for years as the common property of all Americans and free to use without restriction. The questions presented here are:

1. Does the Copyright Clause of the United States Constitution prohibit Congress from taking works out of the public domain?

2. Does Section 514 violate the First Amendment of the United States Constitution?

The Court answered both of these in the negative.

1. First, the Court rejected the "impenetrable barrier to restoration" argument (slip op. at 13), finding no constitutional barrier to restoration. Largely relying upon the previous decision in Eldred (as noted above, also written by Justice Ginsburg), the Court notes that the actual extension offered is a limited time, and therefore literally within Congress's power under the Act. The interesting rhetorical exercise here is that the Court entirely skates on a different question: Might the Treaty Power (Article II, § 2, cl. 2) authorize Congress and the President to fill interstices in the Constitution (slip op. at 1516)? That said, the Court rejects the "personal interest in the public domain" theory put forth by the plaintiffs in objecting to restoring foreign copyrights (slip op. at 1619, citing previous examples of bringing works "back" into protection), and specifically holds that Congress may consider international effectiveness in fashioning domestic law:

Considered against this backdrop, § 514 falls comfortably within Congress’[s] authority under the Copyright Clause. Congress rationally could have concluded that adherence to Berne "promotes the diffusion of knowledge." A well-functioning international copyright system would likely encourage the dissemination of exist-ing and future works. Full compliance with Berne, Congress had reason to believe, would expand the foreign markets available to U.S. authors and invigorate protection against piracy of U.S. works abroad,

(slip op. at 22, internal citations omitted, some typography corrected) Justice Ginsburg concludes for the Court that protection of existing works in an international system is an important motivation entirely consistent with the IP Clause (Article I, § 8, cl. 8) and the imperative to promote progress through creation of new works. Compliance with international norms is, therefore, a rational exercise of Congress's power under the IP Clause.

2. The First Amendment question should have been disposed of by noting that the question had already been settled, and indeed never should have been granted. That said, Justice Ginsburg fairly gently points out two things that make the First Amendment essentially irrelevant to this particular question:

The plaintiffs are not concerned with the First Amendment's protection of their own ideas, but with a purported right to parrot someone else's expression of ideas (with which they may agree or disagree). The idea/expression dichotomy is firmly established as consistent with the First Amendment (slip op. at 2325).

It's not a prohibition by any means; it only requires that plaintiffs, and others, must access the marketplace on the same basis as they would for American contemporaries. Justice Ginsburg's comparison of Prokofiev to Bernstein and Copland (slip op. at 29) is particularly apt in light of some factors that she does not explain — such as successful US efforts to force Russians to pay royalties on Bernstein's and Copland's works for exploitation during the Soviet period of renouncing the Berne Convention. The "orphan works" problem invoked by the dissent is dismissed as non-unique and largely illusory (slip op. at 3032)... and, in particular, outside the scope of the questions presented for review, and not presented by a party with standing.

The iceberg lurking here is whether the formalities of registration, and particularly of renewal, are so inconsistent with Berne that the underlying legislation is, itself, insufficient... and therefore subject to much-more-profound reinterpretation in light of the First Amendment. Fortunately for the Court, this petition did not squarely present that question, because it doesn't have a good or easy answer.

Of course, there was a dissent. It is not a badly reasoned dissent, but it is somewhat disingenuous in one respect: It does not adequately acknowledge the distinction between constitutional restriction and policy-level second-guessing. For example, Justice Breyer claims that:

Still, I cannot find this argument sufficient to save the
statute. For one thing, this is a dilemma of the Govern­ment’s own making. The United States obtained the benefits of Berne for many years despite its failure to enact a statute implementing Article 18. But in 1994, the
United States and other nations signed the Agreement on Trade-Related Aspects of Intellectual Property Rights, which enabled signatories to use World Trade Organiza­tion dispute resolution mechanisms to complain about
other members’ Berne Convention violations. But at that time the Government, although it successfully secured reservations protecting other special features of American copyright law, made no effort to secure a reservation permitting the United States to keep some or all restored works in the American public domain. And it made no effort to do so despite the fact that Article 18 explicitly authorizes countries to negotiate exceptions to the Arti­cle’s retroactivity principle.

(slip op. at 2223 lit./6768 log., internal citations omitted) That is, Justice Breyer's dissent is founded on the failure to negotiate the treaty accession and Uruguay Round amendments as he would have preferred, with 20/20 hindsight, and then elevating that disagreement to constitutional dimension. Sometimes that is valid; in this instance, however, Justice Breyer's rejection of treatment of past works as providing adequate incentive for creation of new works (see, e.g., slip op. at 17 lit./62 log.) is a policy, and not constitutional, preference. As a policy preference, it fails the test for overturning acts of Congress; at the extreme, not everything that is stupid is unconstitutional.

So, then, why should authors care? Primarily, authors should care because it reinforces what were/have been "best practices" for a long time — ask permission, and then rely on fair use only after careful consideration if that permission is refused or too expensive — are legally required for a relatively small universe of foreign works. At oral argument, Chief Justice Roberts asked a semiilluminating question that would have been relevant — whether Jimi Hendrix's version of the "Star Spangled Banner" would have fallen afoul of § 514 if the original music had fallen inside of the foreign rights restored — but never pointed out that factually, Hendrix's interpretation would have qualified as fair use in a way that a literal "mere" quotation would not. That, however, requires actual application of brain to problem instead of mere reference to ideological predispositions; even if information wants to be free, entertainers want to be paid. Secondarily, authors should care because validation of § 514 also validates the converse — efforts to control infringement of their works in foreign jurisdictions that haven't always respected copyright. This is where Justice Ginsburg's silent nudge on Soviet treatment of US works, such as Bernstein and Copland, is most important.

And last, but far from least, a snarky comment about Wikipedia. For those who haven't noticed, Wikipedia is dark today, voluntarily, as a "protest" against SOPA. I share the ire against SOPA (and the various alternatives that have thus far been floated). The snark is twofold: That this points out exactly why voluntarily going dark as a news source misinterprets the First Amendment and is ultimately self-defeating; and that now, at least until midnight today, people trying to understand what Golan means (those who don't stop here first, that is <vbeg>) will not be deceived by the almost-inevitably wrong bullshit that appears on Wikipedia for new intellectual-property opinions. (Aside: No, Mike, it's not you; it's the various "editors" who are more interested in their versions of reality than the ones shared by everyone else, and fail to distinguish between "should be" and "is".) Instead, they'll have a chance of getting something that approaches accuracy... on a copyright matter, during a voluntary darkness in "protest" of a copyright matter.

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